Proposed anti-piracy legislation is currently making its way through Congress and causing quite a stir online. Called the Combating Online Infringement and Counterfeits Act (COICA), the bill, like nearly every proposed IP legislation in the last decade, will, according to its opponents, surely result in a 1984-style government where all of our rights are harshly crushed by a freedom-hating police state. It has been described as “fundamentally a censorship bill” by the president of the Computer and Communications Industry Association. It “will risk fragmenting the Internet’s global domain name system,” according to a group of 80 internet engineers, and “create an environment of tremendous fear and uncertainty for technological innovation.”1HuffPo warns it “would be a tremendous blow to free speech on the Internet.” The EFF agrees: “This is a censorship bill that runs roughshod over freedom of speech on the Internet” and “is designed to undermine basic Internet infrastructure.”

Maybe I’m not cynical enough to accept these apocalyptic predictions at face value. Maybe I don’t think the government is hellbent on shredding the Constitution at any opportunity it gets. And maybe, just maybe, I don’t think the creators who devote their lives to entertaining, enlightening, and enriching us, the millions of technical and administrative workers who help them, and the businesses that aid in disseminating their works around the world are ready to destroy the Internet to get a couple more bucks.

Let’s take a closer look at this bill and see if we can’t separate the rhetoric from the reality.

Supporters of the bill include the US Chamber of Commerce, IATSE, Screen Actors Guild, Directors Guild of America, American Federation of Television and Radio Artists, Viacom, and the Motion Picture Association of America. This past week, Jeff Price, Founder and CEO of TuneCore – a service dedicated to providing digital distribution to independent artists – publicly added his support to COICA.

COICA, as its name suggests, addresses the challenge of managing widespread piracy online. It creates a streamlined procedure for in rem actions against the domain names of sites “dedicated to infringing activities.” When first introduced, the bill provided for the creation of a list of infringing sites by the Attorney General; that provision has been removed from the most recent amended version.

Domain Names

I’m hardly a computer expert, so what follows is the first-grade version of domain names. Domain names are those website addresses we’re all familiar with: www.facebook.com, www.youtube.com, www.copyhype.com, etc. – what you type into your browser to get to a particular site. Every computer that connects to the Internet is given a numerical IP address. Domain names make it easier to connect to the site you want without having to know the specific IP address of the server or computer that the site is hosted on at the moment. This is made possible by domain name registries, which keep a database of domain names and their corresponding IP addresses.

Remove the domain name from the registry and anyone who tries to go to the site gets an error message, or something that looks like this:

Civil Forfeiture

As the illustration above indicates, domain names are treated as any other property that can be seized and forfeited as a matter of law. Asset forfeiture is an important tool in law enforcement. A bank robber can, as part of his sentence, be required to hand over his loot. This type of forfeiture can be referred to as an in personam order – the order to forfeit the assets is a result of a case against a specific person. Less familiar, but perhaps equally as important, is civil forfeiture.

In a civil forfeiture case, the objectives are the same: to recover the proceeds of the crime and the property used to facilitate it; but the procedure is different. Instead of bringing an action against a person (in personam) as part of a criminal case, the action is brought against the property (in rem). In other words, it is a civil case in which the Government is the plaintiff, the property is the defendant, and the persons objecting to the forfeiture are intervenors called “claimants.” This is why civil forfeiture cases — in the United States at least — have such unusual names, such as United States v. $160,000 in U.S. Currency, or United States v. Contents of Account Number 12345 at XYZ Bank Held in the Name of Jones.2

Civil forfeiture against domain names makes sense in addressing online piracy. In many cases, the owner of the domain may be unclear due to the ease of falsifying registration information, or the owner may be difficult to find. Criminal prosecution against the site owners may not be in the interests of justice. And often, these sites are nothing more than their domain name and a collection of links – quick to setup and easy to operate. Traditional criminal prosecution is too costly and ineffective against this widespread digital piracy.

Old Dog, New Tricks

The most ironic part of the complaints that this bill will censor or break the Internet is that in rem procedures against domain names are nothing new. The image above shows one example of a domain name being removed. The in rem action this bill describes is not something the DoJ could not do before. All this bill does is streamline the process. It specifies how to determine issues like the situs of a domain name, the proper jurisdiction for bringing these actions, and appropriate venue – issues that have largely developed through case law.3

Contrary to fears that this bill will result in the takedown of YouTube4 or any number of other sites,5 COICA is aimed only at the most egregious pirate websites, like the ones taken down during this past summer’s anti-piracy initiative Operation In Our Sites – sites which were replaced with the graphic shown above. Fears that the MPAA or RIAA could muscle the DoJ into expanding the definition of sites “dedicated to infringing activity” past the plain meaning of the statute’s text are unfounded; one need only look at the history of criminal copyright prosecution to see there is no evidence that this bill would be used against anything other than the most clearly infringing sites.

In short, the ease and scale of online piracy requires more effective legal tools to manage. The rhetoric against COICA is overblown; the reality is that it offers improvements on one such tool that may better protect the rights of creators.

15 Comments

Operation In Our Sites was quite controversial. To say that Disney didn’t control that raid is to put up a smokescreen and walk through a mirror. The facts of the raid are thus:

1) No evidence of online digital piracy harming sales
2) No effect of determining how this supposed copyright infringement, a civil matter, was held up by law enforcement to be “good for society”
3) Questionable jurisdiction – Namely, why is the ICE raiding people when the warning on DVDs is by the FBI?
4) No way for anyone to determine if infringement occured
5) The largest question – Why does the creator… Scratch that, the copyright holder… need absolute protection of their copyright?

At least the last one I can say is what is at issue. If you can have the Attorney General working closely with Disney (as Operation In Our Sites shows) then this becomes a major 1st amendment issue as it will have a chilling effect on what a site can post. I would love it if there were far more to it than “protection for the creator” but that is just a mere buzzword for the holder of a copyright as if it’s tangible property.

Hi Jay, thanks for the comment.
1) There have been numerous independent studies showing online digital piracy harms sales of copyrighted works.
2) I’m not sure what you mean here. US copyright law has had provisions for criminal infringement since 1897.
3) A number of federal agencies investigate and enforce IP crimes, including ICE.
4) The seizure warrants in the operation were like any other warrant used by law enforcement officials: they were issued by a judge after a showing of probable cause.
5) I don’t see where you get “absolute protection” from. These sites were engaged in the “heart” of copyright infringement: widespread, verbatim reproduction and distribution.

I have failed to see anyone refute the GAO report regarding online piracy. Link/

I have failed to see anyone truly refute Oberholzer-Gee and co-author Koleman Strump’s reports regarding piracy and sales – Link

From what I have seen, most of the supposed reports supporting enforcement have been intellectually dishonest such as the BSA’s consistent reports that don’t report all of the numbers, the 301 report that continues to act as more of a link to filesharing sites, or any other report that shows nothing more than a collusive need for a select few to try to punish the many.

2) As the Constitution says we are supposed to “progress the arts and sciences” with copyright law. How are we progressing either when people have to pay out the nose for a song? Furthermore, this criminal infringement was meant in an age when physical copies of media were more difficult to copy. While the argument isn’t old, nowadays it’s the digital copies, the 1s and 0s, that are at question. Isn’t there better ways to spend the day than litigation?

3) This is what I find questionable, how are they able to enforce this when the ICE is mainly used for border patrol? That’s what I’m at odds with.

4) As I explained, the public has no way of knowing about infringement occurring since the sites are effectively taken down for no one to see. Even this was done under questionable means. Why does the government have the right to take a site down when it never has before?

5) As explained with the Operation In Our Sites, Disney came out and was the first to discuss it. Link
You are saying they reproduced content. I disagree. I checked up on at least one of the sites, and it was nothing more than a link. This is what has not be pressed in court cases. Link

Saying that they were at the “heart” of copyright infringement for linking to material I also find troubling. If it’s a link to a Megavideo site, how is that infringement? If digital distribution is by some means illegal, why is Hulu allowed to thrive? Which is what is truly odd, these places had thousands of people coming into the communities, the sources of the material were on a third site and it’s as if no one paid attention to how this is “evil” when no one offered an alternative.

When I discuss refuting Kolman and Felix’s work, I am talking about someone showing more than a negligible effect. The recording industry has done more to keep music artificially high with $15 CD sales, less rewards to entice people to purchase CDs, a levy tax, and less growth in newer acts. I believe this has more to do with their decline than filesharing.

I’m finding the first article a little difficult to follow.

The ending is the greatest summation:

“Those faults notwithstanding, the major thrust of Oberholzer-Gee and Strumpf’s paper rings true: file sharing can be blamed for part of recorded music revenue declines, that hasn’t eliminated artists’ incentive to create and consumers have benefitted from increased choice.”

“Oberholzer-Gee and Strumpf say the empirical evidence of the effect of file-sharing on sales of recorded music products is mixed, and they note that many studies conclude that music piracy accounts for no more than one-fifth of the recent decline in recording sales. Moreover, the authors assert, file-sharing hasn’t hurt the music industry overall: “While file-sharing disrupted some traditional business models in the creative industries, foremost in music, in our reading of the evidence there is little to suggest that the new technology has discouraged artistic production.”

What it seems you want to say is that CD sales are the entirety of the music industry. This is not the case. The music industry is the vinyl sales, the Apple downloads, and the other ways to add revenue to Universal besides takedowns and suing customers. The evidence is showing that artists are making more money through touring at the expense of the “cheapening” of music downloads. Perhaps the most prevalent for this conversation is this line here:

“Other experts also point to what appears to be a thriving music industry despite the recent plunge in CD sales. In addition to strong revenue from concerts and souvenir sales, television and movies are paying well for songs, scores and musical performances. Lucrative new markets for music have opened up, including ringtones, ringbacks and electronic games (see Guitar Hero). Innovative companies like Pandora, Lala, Mog and Spotify are providing customers with new ways to get music online and over their cellphones. Many experts see this as the industry’s future, with customers paying a fee for unlimited access to music rather than purchasing individual songs or albums.”

With the second one being in regards to the 2004 version, I can’t use that one in relation to the 2009 report unless there’s updated data.

Finally, I know that Strumpf did do a follow up video that is 45 minutes long and on Youtube. For the life of me, I can not find this in regards to his work on internet piracy and the movie industry.

To be fair, the proposed legislation does contain what groups like the EFF refer to as a “blacklist” provision. I do find that provision to be somewhat problematic (and will likely be significantly amended…if not outright removed), but as to the remainder of the legislation there is very little thas is, as you aptly note, not already countenanced by law.

If I have one regret it is that Congress has gone into recess. It was quite pleasant to have the blogsphere focus on it and provide me a holiday from all of the ACTA invective.

I was wondering how long it would be before someone raised the superficial argument that musicians don’t suffer from piracy because they earn more from touring.

This hardly stands up to much examination. First, there are many creative people in the music industry – songwriters, producers, engineers, etc – who are not performers. E.g. how is a specialist lyric writer to make a living without royalties from recordings – is he supposed to go on stage and recite a lyric sheet?

Second, there are performers who make good music in the studio but who for various reasons are not in a position to tour. E.g. they may have caring responsibilities, they may have poor health, or they may simply not be exciting live performers. Does this mean they don’t deserve to make a living from their music?

Third, even for artists who are in a position to tour, it is not the gold-mine some people assume. Stadium acts like U2 and the Rolling Stones may make a fortune from touring (though they also have enormous costs), but most artists, even quite well-known names, have to tour constantly for a relatively modest return. The fall in record sales has increased the pressure to tour, and the market for live music has been saturated. This year demand for tickets has been weak (partly due to the recession) and a lot of concerts, even by big-name acts, have been cancelled or postponed.

Finally, the general arguments of principle about copyright and piracy don’t just apply to music, but to films, books, software, games, and anything else that can be digitally copied. Now that books are becoming easily available in digital form, it will be interesting to see if piracy takes off in the same way as it did in music. If it does, authors will have to give a lot of book readings!

@DavidB
Funny you should mention that. It actually makes me recall Karl Fogel’s description on what you can use Google Books for.

First let’s look at this superficial argument:

“This hardly stands up to much examination. First, there are many creative people in the music industry – songwriters, producers, engineers, etc – who are not performers. E.g. how is a specialist lyric writer to make a living without royalties from recordings – is he supposed to go on stage and recite a lyric sheet?”

If he wants to, yes. The incentive is for him to create new music and constantly challenge himself (or herself) with differing music tastes as muses for inspiration. Patrons enjoy a work? Perhaps they can commission these people for different works. Or maybe they can put a portfolio on Youtube and create new music from old for free. Jonathan Coulton does various little things to make himself known as a musician. Jamendo continues to find new artists and song writers through word of mouth. Is music going to stop being made because the industry says they aren’t making money? Or is the truth being that the Big Four are losing money as other independent but smaller labels are beginning to rise in fame and power?

“Second, there are performers who make good music in the studio but who for various reasons are not in a position to tour. E.g. they may have caring responsibilities, they may have poor health, or they may simply not be exciting live performers. Does this mean they don’t deserve to make a living from their music?”

I have heard a lot of different music through Youtube. I love Grooveshark for finding new artists. Does that mean I won’t pay for a CD? Especially when that money can be used elsewhere? The thing about the internet is that it has made the recording studios largely irrelevant in their old business models. I remember in the 90s a LOT of bands complaining about their 360 deals, which was all for the recording label and very little to do with compensating the artist. If we are pulling old numbers, then this is just as relevant as the misguided view that the recording industry deserves their profits with their entitlement complex.

“The fall in record sales has increased the pressure to tour, and the market for live music has been saturated. This year demand for tickets has been weak (partly due to the recession) and a lot of concerts, even by big-name acts, have been cancelled or postponed.”

Finally, artists are speaking about this. Joss Stone, 50-Cent, Trent Reznor, Radiohead… Do I hear a lot about them worrying about lost potential sales or catering to their current customers?

“Now that books are becoming easily available in digital form, it will be interesting to see if piracy takes off in the same way as it did in music. If it does, authors will have to give a lot of book readings!”

I think Jay’s replies to my points just illustrate the fact that the defenders of piracy don’t have any real concern for the interests of artists. For example, he hasn’t actually answered my second point at all – he just changed the subject.

Like many others, Jay also shares the naive illusion that the internet will continue indefinitely in its present largely unregulated condition. I don’t think this is tenable for more than about 5 years. Piracy is only one of many issues that governments are beginning to address. There is also the growth in cybercrime, the threat of cyberwarfare (like the current business in Iran), the use of the net by terrorists and organised crime, the rising tide of viruses and malware, concerns over libel and invasion of privacy, and many other problems. I can’t predict exactly how the net will look in 10 years time, but I do predict that there will be an internationally agreed framework of regulation, and that any countries which don’t join or comply with the framework will be ‘disconnected’.

“I think Jay’s replies to my points just illustrate the fact that the defenders of piracy don’t have any real concern for the interests of artists. For example, he hasn’t actually answered my second point at all – he just changed the subject.”

I take offense to that. I didn’t change the subject at all. I used anecdotal evidence in regards to streaming or Youtube, both using music in unique ways. Are the engineers, writers, etc being paid through my clicking on the Youtube button for play? So in all honesty, those situations are similar to me or any other “pirate” downloading a song. As the point stands, there are ways to make money for any type of artist which I pulled together at the bottom of my post.

Then your second paragraph goes very far off the topic to bring a conspiratorial view to everything rather than debating the points.

“Like many others, Jay also shares the naive illusion that the internet will continue indefinitely in its present largely unregulated condition.”

That’s a strawman that you’re bringing up rather than debating the points. Nothing in my words was discussing internet regulation, merely how the internet, the music industry, and consumers interact.

If you had read the Harry Potter link, I would have thought that you would understand that even though Rowling has just put up pdfs within this year, it hasn’t stopped her fans from making her books available beforehand. People still want to buy them, now they can do it through her website.

OK, Jay has a fair point in that he didn’t actually say anything about internet regulation, and I shouldn’t have assumed that he held any particular view about that.

But I still don’t think he has answered my second point at all. My point was that there are artists who are not in a position to tour. I have read his reply to that several times without being able to extract any relevant meaning from it. He veers off into a rant against big record companies, but what has this got to do with my point? Is he suggesting that only records from big companies are pirated? If so he is quite mistaken. Independent artists are just as likely to be ripped off. Search Google for ‘downloads’ of any indie artist you can think of, and the majority of the results will be blatant pirate sites.

In the long term I think international regulation will have some effect, but in the short term I have one suggestion for the music industry (whether artists or companies). File sharing networks are ideal vehicles for the distribution of malware. A lot of malware is already distributed in that way. A computer engineer recently told me they are second only to porn sites for that purpose. The music industry (and other copyright owners) could make much more publicity of the risks. ‘Free’ music isn’t free if you have to spend hundreds of dollars/pounds/euros etc getting your computer cleaned up after an infection. And if the industry really wanted to play hardball it could channel some money to malware developers to concentrate on pirate sites and their users. Of course, that would probably be illegal, but if I were, say, a heavy metal rock star, I wouldn’t hesitate to pay some Ukrainian gangster to devise a nasty ‘surprise’ for people who tried to pirate my records.

““Second, there are performers who make good music in the studio but who for various reasons are not in a position to tour. E.g. they may have caring responsibilities, they may have poor health, or they may simply not be exciting live performers. Does this mean they don’t deserve to make a living from their music?””

“But I still don’t think he has answered my second point at all. My point was that there are artists who are not in a position to tour. I have read his reply to that several times without being able to extract any relevant meaning from it. He veers off into a rant against big record companies, but what has this got to do with my point? Is he suggesting that only records from big companies are pirated? If so he is quite mistaken. Independent artists are just as likely to be ripped off. Search Google for ‘downloads’ of any indie artist you can think of, and the majority of the results will be blatant pirate sites.”

Did you miss the links about Jonathon Coulton? He doesn’t tour unless there’s demand for him, which he does without Ticketmaster and $5 tickets if you preorder. It’s a convenience for his customers/fans and he’s making money. Odds are, there are people that will buy his music and not convert. But he’s made it simple on his page. “Did you pirate a song? No problem, I have a donation button right here” This is what technology is giving artists. Choice. If they aren’t feeling well, there’s nothing stopping them from making music and putting it up on Youtube or their own site, Myspace or Livestream to connect.

Lady Gaga, for all her faults, has become a sensation BECAUSE she doesn’t share all of her life publicly. She guards certain information, akin to what Madonna did in her early years. Regardless, she makes money and with her record label doing a lot to promote HER (not her songs, key difference) they continue to make money.

The basis of my argument stands that even though they may not be able to tour, there are various ways that they can continue to make money, regardless of if they want the touring lifestyle, local artist lifestyle, or international lifestyle. That’s up to the artist.

The ones that are worried the most are the ones with the most to lose. Those are the record labels, middlemen, that I am supposedly railing against. The DMCA is truly anti consumer in a lot of ways. But that’s a debate for another time. Finally:

“File sharing networks are ideal vehicles for the distribution of malware. A lot of malware is already distributed in that way. A computer engineer recently told me they are second only to porn sites for that purpose. The music industry (and other copyright owners) could make much more publicity of the risks. ‘Free’ music isn’t free if you have to spend hundreds of dollars/pounds/euros etc getting your computer cleaned up after an infection. ”

Again, this is truly irrelevant. First, the anecdote is old. I heard this when Napster was invented. This is a regular scare tactic to try to deter filesharing, which the RIAA already used unsuccessfully. The “music industry” is doing just fine. But the recording industry is what is truly hurting.

Again, the point of all of this isn’t that music is “free” as in free to download. It’s more or less that more artists are understanding that they don’t have to worry about money coming from every song when they can make that money elsewhere. Whether it’s shirts, coffee mugs, a chance to fly out to see particularly dedicated fans, or showing fans a day in their lives, the options are limitless. It’s just not lost because they didn’t make $1 on a song.

This isn’t much point in continuing this discussion as Jay continues to evade my point. There are artists who are not in a position to tour. So what does he suggest? That they should put their music on YouTube! Or sell coffee mugs! Does he imagine anyone can make a living from that? It really is literally adding insult to injury when artists are deprived of their legitimate rewards through illegal action (I won’t say ‘theft’, because I know that always leads to semantic nit-picking), and then told they can sell coffee mugs.

I’m debating you and saying there’s alternative, you’re dismissing those avenues as if there’s something wrong with them.

I speak about Jonathan Coulton and his ease of use with $5 tickets and convenience for customers and how that’s making money, and again, you mark the conversation with intellectual dishonesty by trying to attack me with some weird third person rant without really arguing the point made.

Enough is enough. I’ve stated quite plainly that artists have quite a few business models before them. If they want to sell coffee mugs and t-shirts and that’s it, it’s a revenue source. If they’re selling convenience to their customers through cheap tickets to their events, that’s another source. As I’m believing the music has come up, it’s used to sell something else. Namely access to a fan’s favorite musician. Rather than continue talking to someone that has no point, I’ll link to someone that can discuss this issue a little more.

What’s truly amazing is how someone can’t see the great success that Livestream, Youtube, Myspace and social networking sites have GIVEN to artists in connecting with their fans and making money. To somehow suggest that the only option is for someone to go to a record label… Scratch that… You really haven’t suggested any alternatives yourself, just appealing to ridicule.

So if supposedly, my small “off the top of my head” suggestions are supposedly not the ways of doing business, then what are you suggesting for artists that is loads better?

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.